Could Arizona Senate contempt vote on election audit lead to arrest of Maricopa County supervisors?

Jen Fifield and Andrew Oxford, Arizona Republic
·9 min read

PHOENIX – The feud between the Arizona Senate and the Maricopa County Board of Supervisors over lawmakers' insistence that the county perform another hand count of 2020 general election results has escalated in the past few weeks.

Now, the Senate might take it even further.

The Senate, controlled by Republicans, has threatened to hold the supervisors, nearly all Republicans, in contempt for not responding to subpoenas asking for copies of all the county's mail-in ballots and access to voting machines. The Senate wants to perform its own audit.

Some senators have even threatened to arrest the supervisors over the matter, and the body could vote on the contempt resolution as early as Monday.

If the lawmakers go ahead with this, it could be a first in Arizona history. No legislator interviewed could remember the Senate ever passing such a resolution.

So, how did we get to this point? What does this actually mean?

It's complicated, and at times convoluted. But here’s what we know:

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How did this all start?

On Nov. 3 and in the days after the general election, Arizona was in the national spotlight.

Biden’s win here was the closest in the nation. Maricopa County, in particular, was a tight margin of victory for Biden. The county also has the most voters in the state.

As former President Donald Trump and some of his supporters began to claim widespread fraud and vote tampering, the county became a target for lawsuits from the GOP and Trump campaign. They brought at least seven election-related lawsuits against the Board of Supervisors. Each was dismissed by the courts, or withdrawn.

Despite those dismissals, and despite reassurances from the supervisors that the county’s election was fair and secure, some Republicans in the Arizona Senate began calling for the supervisors to perform another audit of the results.

Had the supervisors already audited the election results?

Yes, in two ways.

State law requires counties to do two types of audits after an election: a hand count of ballots and a logic and accuracy test of voting machines.

A Maricopa County election employee works during a postelection logic and accuracy test with the tabulation machines at the Maricopa County elections tabulation center in Phoenix on Nov. 18, 2020. The Maricopa County Elections Department runs a logic and accuracy test with a number of sample ballots before and after every election.
A Maricopa County election employee works during a postelection logic and accuracy test with the tabulation machines at the Maricopa County elections tabulation center in Phoenix on Nov. 18, 2020. The Maricopa County Elections Department runs a logic and accuracy test with a number of sample ballots before and after every election.

For the hand count, the county examined ballots from 2% of vote centers, as well as 5,000 early ballots, and found that the county’s voting machines counted the ballots with 100% accuracy. Political parties appointed representatives to select which vote centers to audit, and they helped perform the hand count.

The logic and accuracy test also found that machines operated without error.

Prior to certifying the results, the supervisors grilled county elections staff for hours about all of the concerns they had heard regarding the integrity of the election. They also appeared at a Senate Judiciary Hearing to answer lawmakers' questions for six hours.

Supervisor Clint Hickman, board chairman at the time, said that "no matter how you voted, this election was administered with integrity, transparency, and most importantly in accordance with Arizona state laws.”

So what else does the Senate want? What did the subpoenas ask for?

In part, the Senate wants a more thorough hand count of ballots. And they want to do it themselves — or to choose who will.

In December, Senate Republicans issued two subpoenas to the supervisors that demanded images of every mail-in ballot, access to voting machines and software, and voter information, such as voter addresses, birth dates and party affiliation.

Instead of responding to the subpoenas, the supervisors filed a lawsuit Dec. 18 in Maricopa County Superior Court asking a judge to decide whether they should provide the information.

The county argued, in part, that the subpoenas violate Arizona laws regarding ballot secrecy and access to ballots.

What does state law say? Can the supervisors hand over the ballots?

Two state laws apply, and they are contradictory. That’s partly why the supervisors filed the lawsuit — to gain clarity from the court.

First, state law gives the Legislature sweeping authority to issue subpoenas and conduct investigations. The Arizona Attorney General's Office weighed in on this, saying that legislative bodies or committee chairs can issue summonses either to inform future legislation or to “investigate whether a particular governmental entity properly discharged its functions.”

But state law also requires that, after results are certified, ballots be kept “in a secure facility managed by the county treasurer, who shall keep it unopened and unaltered for twenty-four months for elections for a federal office.”

That portion of the law also states that a court order could unseal the ballots.

Could attorneys for the county and the state work something out?

For a while there, it looked like they might. But this is where things really started to go sideways.

A Jan. 20 hearing on the court case was vacated and the Senate announced the same day that the county had agreed to its demands. But the supervisors responded by saying such an agreement was not made.

A week later, the supervisors voted unanimously to hire two firms to conduct another audit.

That audit is ongoing. The companies are again examining whether the machines counted votes properly, whether they were hacked or tampered with, and whether the county used proper procedures when leasing its machines from Dominion Voting Systems.

This has not satisfied the Senate, though, because the audit does not include another hand count of ballots (which the county still argues it cannot do since the ballots are locked away per state law).

In response, Senate President Karen Fann, R-Prescott, announced Jan. 29 that it had hired its own firm to do an audit that would include another hand count.

The problem: The Senate doesn’t have ballots to audit. And a few days later Fann said the Senate had not actually hired anyone yet.

Arizona Senate President Karen Fann stands on the floor of the Senate at the Arizona State Capitol in Phoenix on Monday, May 27, 2019.
Arizona Senate President Karen Fann stands on the floor of the Senate at the Arizona State Capitol in Phoenix on Monday, May 27, 2019.

So, whatever happened to that court case?

In short, it’s dead.

The judge eventually ruled that the Senate subpoenas were moot because the last Legislature that had issued them adjourned and a new one convened, according to a county court filing.

On Jan. 15, though, the Senate under the new Legislature issued new subpoenas to the supervisors, the Recorder’s Office and the treasurer.

Those are the subpoenas in question now.

What do those subpoenas ask for?

The Senate’s demands in the new subpoenas were similar to the original subpoenas.

The county has provided myriad documents in response, such as publicly available voter information, election log files, ballot reports and the cast vote record.

But county officials still haven't handed over the ballots or the voting machines. And now the Senate is escalating their efforts through the threat of contempt.

What exactly does contempt mean here?

State law says if a witness does not obey a legislative subpoena, the Senate can pass a resolution committing the witness for contempt. The sergeant at arms can then arrest the witness and bring them before the Senate.

Could supervisors end up in jail?

Several lawmakers interviewed by The Arizona Republic said they could not recall the Senate ever approving such a resolution, much less locking up witnesses.

While acknowledging that law gives the Senate the authority to have the board of supervisors arrested, Fann downplayed the idea last week. She said the chamber might return to court or ask the attorney general to prosecute. Disobeying a legislative subpoena is a class two misdemeanor, after all.

But other legislators appear more than ready to send out a posse.

“Once that passes, the Senate president will instruct the sergeant at arms to go to their offices and arrest them,” Rep. Mark Finchem, R-Oro Valley, told former Trump adviser Steve Bannon on Bannon's podcast Feb. 4.

DIG DEEPER: Trump campaign paid Finchem $6K during election challenge

Finchem as a member of the House of Representatives has no power or voice in actions taken by the Senate, it should be noted.

Still, Supervisor Bill Gates said Friday he was taken aback by the Senate’s threat. He also said that it’s time for the lawmakers to be clear about where this is headed.

“It’s time to stop playing games,” he said. “I’m not sure what they are trying to accomplish.”

What are supervisors doing about the threat of arrest?

They’ve gotten their attorneys involved.

The supervisors on Friday filed a new lawsuit asking the court to issue an order quashing the January subpoenas, calling them unlawful.

The supervisors’ attorneys didn’t mince their words.

They said that while the Senate has the power to issue subpoenas, these are “sham” subpoenas.

The new subpoenas gave supervisors less than 24 hours to report to a hearing and bring about 2 million ballots and voting equipment. When Supervisors’ Chairman Jack Sellers arrived, albeit without the ballots, he found there was no hearing scheduled and he was asked to leave, according to a county court filing.

The subpoenas were “commanding the presence of a witness at a hearing that does not exist, commanding the production of 2.1 million voted, secret ballots in violation of Arizona statute, and commanding the inspection of certified elections equipment by a team of uncertified laymen who have demonstrated a stunning lack of knowledge about election processes and election security,” the attorneys wrote to the court.

So, while the senators have the right to issue subpoenas, the county attorneys say these subpoenas are unlawful and therefore the Senate “cannot demand, upon pain of imprisonment or a misdemeanor conviction, that its subpoenas be obeyed.”

The complaint is awaiting action from the court.

OK, so what will actually happen? Are there enough votes to find contempt?

The Senate is narrowly divided, with Republicans holding a 16-14 majority.

And several Republicans would seem unlikely to support potentially arresting the Board of Supervisors.

But when Fann introduced the contempt resolution, every Republican in the Senate signed on as a co-sponsor and voted to fast-track the resolution for a vote as early as Monday.

That signals — though doesn't guarantee — there are enough votes for it to pass.

This aggressive move perhaps should not come as a surprise. The Republican caucus in the Senate has shifted much further to the right this year after Democrats ousted a relatively moderate GOP lawmaker in Paradise Valley and a conservative defeated another moderate lawmaker in the Republican primary.

Republican lawmakers also have argued that this is not about the last election but about the Legislature’s power, describing the county’s response as a direct challenge to the Senate’s authority.

“We’ve got a county board that is literally defying your authority,” Sen. Sonny Borrelli, R-Lake Havasu City, told the Senate on Thursday.

Gates said it was clear that lawmakers feel the supervisors are disrespecting them.

“We are not disrespecting them,” he said. “We are respecting Arizona law. We have turned over everything that we can turn over.”

Follow Jen Fifield on Twitter @JenAFifield and Andrew Oxford @andrewboxford.

This article originally appeared on Arizona Republic: Arizona Senate may vote to hold Maricopa County officials in contempt